May 22, 2017 Articles

A Mediator’s Perspective on Probate and Trust Resolution

By Edmund J. Sikorski Jr.

When probate and trust issues arise, mediation is superior to litigation for resolving disputes. Mediation affords clients more control and involvement in the dispute resolution process and is more cost-effective, and the mutually negotiated outcomes are generally more satisfactory to clients than the imposition of a third-party decision.

Early Case Resolution
The longer the conflict rages on, the more likely the victor will in fact become the vanquished. The emotional and physical commitment necessary to pursue this type of litigation is enormous. It is accurate to say that the acrimony generated by the litigation process is a death sentence for any sense of family for ensuing generations.

More complex cases (such as capacity and undue influence cases) are less capable of early resolution because they are fact-intense and thus require substantive discovery. Court intervention may be needed to compel the production of records and other relevant information, particularly when the information is potentially adverse to one or more litigants. Discovery gamesmanship not only precludes early case resolution, it also substantially interferes with the process, regardless of the stage of the litigation.

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